A. C. Rochat Co.

National Labor Relations Board - Board Decisions

Mar 15, 1967

163 N.L.R.B. 421 (N.L.R.B. 1967)

A. C. ROCHAT COMPANY
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
the Respondent to insure that such notices are not altered,
defaced, or covered by other material.
(b) Notify the Regional Director for Region 10, in
writing , within 20 days from the date of receipt of this
Decision , what steps Respondent has taken to comply
herewith.2
I In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT unlawfully interrogate our employees
or threaten them with economic reprisals or promise
them economic benefits for the purpose of influencing
their union activities or sympathies.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of their right to self-organization , to form,
join , or assist United Packinghouse , Food & Allied
Workers, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of
their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
All our. employees are free to become or remain or to
refrain from becoming or remaining members of United
Packinghouse , Food & Allied Workers, AFL-CIO, or any
other labor organization.
GALBREATH BAKERY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 528 Peachtree-
Seventh Building , 50 Seventh Street , N.E., Atlanta,
Georgia 30323 , Telephone 526-5741.
421
A. C. Rochat Company and E . R. Beeler,
Director of Organization , Region III, Sheet
Metal Workers International Association,
AFL-CIO. Case 10-CA-5676.
March 15, 1967
SUPPLEMENTAL DECISION AND AMENDED
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN,
JENKINS, AND ZAGORIA
On January 29,1965, the National Labor Relations
Board issued its Decision and Order in this case,' in
which it found that Respondent had violated Section
8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended. The Board found that the
Respondent, who was engaged in the sale,
installation , and maintenance of air conditioning,
heating, and refrigerating equipment, had initially
discharged or laid off 5 employees because of their
union activities; and had subsequently abandoned
part of its business, laying off 17 other employees,
because of its refusal to recognize and bargain
collectively with the Union. The Board ordered
Respondent to make whole the employees who were
discriminatorily discharged or laid off by paying to
each the amount he would have earned from the
time of discharge or layoff until such time as each
secured substantially equivalent employment with
another employer or with Respondent in the event it
resumed its former operations. The Board also
ordered Respondent to reinstate all the employees
who were discharged or laid off in the event it
resumed operations, and to create a preferential
hiring list and notify the employees on that list that
in the event it resumed operations, it would reinstate
all those employees who were discriminatorily
discharged or laid off.
On October 11, 1966, the Board issued a notice to
show cause in this proceeding requesting the parties
to show cause why, in the light of the Supreme
Court's decision in N.L.R.B. v. Darlington
Manufacturing Co.,2 the Board's Order should not
be modified to find that the Respondent did not
violate the Act by discontinuing part of its business
and laying off the 17 employees. The Board noted
that in Darlington the Court pointed out that it was
not an unfair labor practice for an employer to shut
down part of its business permanently for antiunion
reasons unless the partial closing was motivated by a
purpose to "chill unionism" in any of the remaining
parts of its business.
Thereafter the Respondent and the Charging
Party filed responses to the show cause order. The
' 150 NLRB 1402.
2 380 U.S. 263.
163 NLRB No. 49
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Party takes the position that the
Darlington decision is not in conflict with the
Board's decision since the Respondent's motive was
to chill unionism3 and that the Board's decision
should not be changed. The Respondent contends
that because its president, A. C. Rochat, was
motivated by his religious beliefs in refusing to
bargain with the Union and in closing down the sheet
metal operations, the Board should vacate its order.
In any event, the Respondent contends that
Darlington is controlling to the extent that the
permanent closing down of its sheet metal
operations and laying off the 17 employees was not
in violation of the Act. We find merit in the
Respondent's position to the extent herein indicated.
Initially we state that we adhere to that portion of
our earlier findings, adopting thereby the Trial
Examiner's findings, that the Respondent violated
Section 8(a)(1) of the Act by interrogating its
employees concerning their union activities and by
threatening them with loss of employment if the
Union won the election. We also adhere to our
finding that the Respondent violated Section 8(a)(3)
of the Act by discharging Gene Bruce, Louie Mills,
Ralph Cox, Bobby Dukes, and C. D. Chandler; and
violated Section 8(a)(5) by its general refusal to meet
and bargain with the Union as the statutory
representative of its employees after the Union's
certification. The evidence in the record makes
clear, and we are offered no proof to the contrary,
that the Respondent's conduct on which these
violations are based was motivated by antiunion
considerations and that such conduct occurred
before any decision was taken by the Respondent to
terminate its sheet metal operations.
The Supreme Court's decision in Darlington,
however, compels a different conclusion as to the
Respondent's liability for the layoff of the 17
employees upon the closing down of its sheet metal
operations. In Darlington the Supreme Court stated
that it is not an unfair labor practice for an employer
to shut down part of its business permanently for
antiunion reasons, unless the partial closing is
"motivated by a purpose to chill unionism in any of
the remaining [parts of business" explaining:
If the persons exercising control over a plant
that is being closed for anti-union reasons (1)
have an interest in another business, whether or
not affiliated with or engaged in the same line of
commercial activity as the closed plant, of
sufficient substantiality to give promise of their
reaping a benefit from the discouragement of
unionization in that business; (2) act to close
their plant with the purpose of producing such a
result ; and (3 ) occupy a relationship to the other
business which makes it realistically
foreseeable that its employees will fear that
such business will also be closed down if they
persist in organizational activities , we think that
an unfair labor practice has been made out. Id.,
275.
The closing down of the Respondent 's sheet metal
operations was, of course , triggered by union
considerations , but we cannot find on the evidence
before us that the purpose was to "chill " unionism in
the remaining part of its business . For one thing
there is no affirmative evidence that such was the
intention of A. C. Rochat , who guided the destinies
of the Respondent . Respondent ' s activities other
than its sheet metal operations were in the sale of
air-conditioning and refrigeration equipment.
Respondent 's sales force consisted of Respondent's
sales manager , John Rochat , a brother of A. C.
Rochat , and one salesman . While its installation
services were unquestionably important to its sales
activities , and vice versa , we have no evidence as to
the relative profitability of these two activities. Not
only is it reasonable to infer that the elimination of
the installation services could , without more, serve
to affect the volume of sales , but the evidence shows
that, after the closing down of its sheet metal
operations , Respondent voluntarily restricted its
sales to transactions that would not require
installation by Respondent and so instructed its
salesman .4 In such circumstances we cannot infer
that Respondent disposed of a substantial part of its
business involving the layoff of 22 employees
because it believed that by doing so it would
discourage the unionization of a salesman and a
bookkeeper and that it would reap a substantial
economic benefit from such discouragement.
Moreover , there is no evidence that the Union, or
any other labor organization, was in any way
interested in conducting an organizing campaign
among the two remaining employees , so as to have
made their organization a prime concern of the
Respondent , and, indeed , the Union appears to
concede that the two employees were not, in fact,
amenable to unionization . For the foregoing reasons
we conclude that Respondent 's purpose in closing
down its sheet ' metal operations was not to "chill"
unionism among its remaining employees , and that
termination of these operations was not , therefore, in
violation of Section 8(a)(3) of the Act.
As to the Respondent 's conduct in closing down
its sheet metal operations and disposing of its assets
without informing or consulting with the Union, the
Trial Examiner found, and we agreed, that it
The Charging Party argues that where an employer so
reduces the size and changes the method of operation to a degree
that the remaining portion is not amenable to unionization, his
purpose has been to defeat the union in the remaining portion
" Such evidence as we have in the record suggests that a sale of
equipment was more likely to be effectuated if it carried with it an
obligation to install
A. C. ROCHAT COMPANY 423
constituted a violation of Section 8(a)(5) of the Act.
We still hold to the principle as we recently stated in
Ozark Trailers , Incorporated ,5 that an employer who
decides to terminate a portion of its business has an
obligation to "engage in a full and frank discussion
with the collective -bargaining representative in
which a bona fide effort will be made to explore
possible alternatives , if any , that may achieve a
mutually satisfactory accommodation of the
interests of both the employer and the employees."
But, on reexamination of the record, we are
persuaded that this aspect of Respondent 's conduct
does not merit a finding of an 8 (a)(5) violation eA en
though we regard the Respondent 's action in
terminating his sheet metal operations as only a
partial closing as defined by the Supreme Court in
its Darlington decision.
In that connection the evidence shows that the
Union was informed by Respondent' s attorney
shortly after the election that Respondent would
never sign a contract with the Union because of A.
C. Rochat's religious convictions , and that
Respondent would rather sell the business . It is not
disputed that Respondent made bona fide efforts to
dispose of its business , which , if successful, would
have permitted its continuation as a going concern
and the preservation of the Union 's interest . In fact,
the Union offered to help Respondent find a buyer,
and even succeeded in referring one prospective
buyer. Unfortunately, all attempts to consummate a
sale of the business ended in failure . It was only then
that Respondent made its decision to dispose of its
machines and equipment by sale and auction.
We are not enlightened on how , in the foregoing
circumstances , the Respondent and the Union could
have engaged in effective bargaining before
Respondent made the irreversible decision and
disposed of its assets . The problem was not an
economic one, and we cannot see wherein A. C.
Rochat' s religious convictions , which were at the
heart of the Union's difficulty with Respondent,
could be an apt subject for collective bargaining in
this matter . We are of the opinion now, and so find
upon consideration of all the circumstances of this
case, that the Respondent did not violate Section
8(a)(5) of the Act in connection with the sale and
disposition of its assets.
The conclusions we have reached here dictate, in
light of the Court' s decision in Darlington , an altered
remedy. As we have indicated, the permanent
closing of the sheet metal operations terminated
Respondent 's liability after March 6, 1964, the date
on which it first disposed of a substantial part of its
physical assets. Thus there can be no backpay for
the 17 employees laid off at that time . However, it
does not affect Respondent 's liability for the
discriminatory discharge of the five named
employees , and with respect to them we shall order
the Respondent to make them whole for any loss of
pay they may have suffered by reason of the
discrimination against them . Their backpay,
however, shall be for the period from the date or
dates of their respective discriminations to March 6,
1964, the date on which the Respondent terminated
its sheet metal operations , and beyond which there
is to be no liability for backpay. Furthermore, we are
also of the opinion that it will effectuate the policies
of the Act to order the Respondent to cease and
desist from engaging in conduct herein found to be
in violation of the Act.
Our decision herein is based on a finding that
Respondent has permanently terminated its sheet
metal operations . On the chance that Respondent
may, under circumstances that we cannot foresee,
resume such operations, we shall , in order to meet
such contingencies , retain jurisdiction herein so that
we may then reconsider the implications of such
action on Respondent 's part.
AMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent, A.
C. Rochat Company, its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Sheet
Metal Workers International Association,
AFL-CIO, or any other labor organization, as the
exclusive representative of any of its employees at
Respondent ' s Knoxville, Tennessee , plant, in an
appropriate unit.
(b) Discouraging membership in the above-named
or any other labor organization of its employees by
discharging or laying off any of its employees
because of their union activities or otherwise
discriminating in regard to their hire or tenure of
employment or any term or condition of
employment.
(c) Threatening employees to discontinue any
operations or departments or to discharge any of
them or to take other reprisals because of
membership in, or activities on behalf of, the above-
named or any other labor organization.
(d) Interrogating employees concerning their
activities in behalf of the above - named Union, or any
other labor organization , in a manner constituting
interference, restraint, or coercion in violation of the
Act.
(e) Threatening employees that it will not bargain
with the above -named Union , or any other labor
organization, notwithstanding the fact that said
Union is certified by the National Labor Relations
Board as the representative of the Respondent's
employees.
5 161 NLRB 561
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Creating the impression that its employees are IT IS FURTHER ORDERED that the Board reserves
under surveillance in their union activities in a to itself the right to reconsider and modify the
manner constituting interference, restraint, and provisions of this Amended Order, if made
coercion in violation of the Act. necessary by circumstances not now apparent.
(g) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization , to form , loin, or
assist Sheet Metal Workers International
Association , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing , and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , and to refrain from any or all such
activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make whole C. D. Chandler , Gene Bruce,
Louie Mills, Ralph Cox, and Bobby Dukes, who were
discriminatorily discharged, for any loss of pay they
may have suffered by reason of the discrimination
against them, in the manner set forth in the section
of the Trial Ekaminer ' s Decision entitled "The
Remedy," as modified by our supplemental decision
herein.
(b) Post at its offices and plant at Knoxville,
Tennessee , copies of the attached amended notice
marked "Appendix A. 116 Copies of said notice, to be
furnished by the Regional Director for Region 10,
after being duly signed by Respondent's
representative , shall be posted by Respondent
immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or
covered by any other material . Inasmuch as the
posting of a notice in a plant with drastically reduced
operations would be inadequate to inform all of the
affected parties, the Respondent shall also mail an
exact copy of the amended notice to the Union and to
each of the employees listed in the attached
"Appendix A." Copies of said notice, also to be
furnished by the Regional Director for Region 10,
shall, after being signed by Respondent's
representative , be mailed immediately after receipt
thereof.
(c) Preserve and, upon request , make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports, and all
other records necessary for determination of the
amount of backpay due under the terms of this
Amended Order.
(d) Notify the Regional Director for Region 10, in
writing, within 10 days from the date of this
Amended Order , what steps have been taken to
comply herewith.
6 In the event that this Amended Order is enforced by a decree
of a United States Court of Appeals , there shall be substituted for
the words "a Supplemental Decision and Amended Order" the
words "a Decree of the United States Court of Appeals , Enforcing
an Amended Order "
APPENDIX A
AMENDED NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and
Amended Order of the National Labor Relations
Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we
hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with Sheet Metal Workers International
Association, AFL-CIO, or any other labor
organization, as the exclusive representative of
our employees in an appropriate unit.
WE WILL NOT discourage membership in the
above-named, or any other labor organization of
our employees, by discharging or laying off any
of our employees, or otherwise discriminate in
regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT threaten to discontinue our
business or to discharge any of our employees
or to take other reprisals against them because
of their membership in, or activities on behalf
of, any labor organization.
WE WILL NOT interrogate our employees
concerning their union activities in a manner
constituting interference, restraint, and
coercion in violation of Section 8(a)(1) of the
Act.
WE WILL NOT threaten our employees that we
will not bargain with any labor organization
notwithstanding the fact that it is certified by
the National Labor Relations Board as the
representative of our employees.
WE WILL NOT create among our employees
the impression that they are under surveillance
in their union activities in a manner constituting
interference, restraint, and coercion in violation
of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist Sheet Metal Workers
International Association, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other
NORTHWEST SMORGASBORD, INC. 425
mutual aid or protection, and to refrain from any
or all such activities.
WE WILL make whole C. D. Chandler, Gene
Bruce, Louie Mills, Ralph Cox, and Bobby
Dukes for the discrimination practiced against
them.
A. C. ROCHAT
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions they may,
communicate directly with the Board's Regional
Office, 528 Peachtree-Seventh Building, 50 Seventh
Street, Atlanta, Georgia 30323, Telephone 526-5741.
Northwest Smorgasbord , Inc.' Employer and
Local Joint Executive Board of Hotel &
Restaurant Employees and Bartenders
International Union , AFL-CIO , Petitioner.
Case 19-RC-4060.
March 15,1967
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Sam T. Kabanuck, Hearing
Officer. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are
hereby affirmed. The Employer and the Petitioner
have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
The Employer's name appears as amended at the hearing
t This figure does not include the State sales tax of 4 2 percent.
a Carolina Supplies and Cement Co ,122 NLRB 88.
4Intergraphic Corporation of America, 160 NLRB 100; City
Line Open Hearth, Inc., 141 NLRB 799, Wallace Shops, inc , 133
NLRB 36, Sequim Lumber and Supply Company, 123 NLRB 1097;
Miller Container Corporation, 115 NLRB 509
Attached to the brief filed by the Employer is a request that the
Board consider additional data based on the Employer's
operations since the hearing or, alternatively, that the Board
reopen the record for the presentation of such data. To consider
post hearing business fluctuations , however, is contrary to the
163 NLRB No. 57
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer, which contests the Board's
assertion of jurisdiction, has been engaged since
November 1, 1966, in the operation of a restaurant in
Seattle, Washington. The Employer's receipts for
the first month of operation totaled over $46,496.2
Projecting this figure on an annual basis indicates
that the Employer's volume of business will total
over $500,000 a year, and, therefore, that the
Employer's operation meets the Board's
jurisdictional standard for retail enterprises.3
The Employer contended at the hearing (1) that
the Board lacks jurisdiction because the restaurant
has been in operation for so short a time, and (2) that
the restaurant business generally declines after the
initial period of operation. We find no merit in these
contentions. As to (1) the Board, in administering its
jurisdictional standards, customarily projects
available revenue figures with respect to a business
in operation for less than a year.4 As to (2) this
contention is conjectural. Accordingly, we find that
the Employer is engaged in commerce, and that it
will effectuate the policies of the Act to assert
jurisdiction.'
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All production and maintenance employees
employed by the Employer at 85th and 1st Avenue
N. W., Seattle, Washington, excluding all office
clerical employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from
publication.]
basic considerations underlying the Board 's projection policy As
we are satisfied that the Employer's operations on a projected
basis meet the Board 's jurisdictional standards , we see no reason
for deferring the right of the Employer's employees to avail
themselves of the processes of the Act The proffer of additional
data is therefore rejected, and the motion to reopen the record is
hereby denied
5In view of this determination, we find it unnecessary to
consider the Petitioner's alternative contention that the Employer
and the corporation under whose franchise it operates constitute a
single employer